VLADIMIR SOKOLOV, ETC., PETITIONER V. UNITED STATES OF AMERICA
No. 87-323
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Questions Presented
Opinions Below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-26a) is reported
at 814 F.2d 864. The June 2, 1986, opinion of the district court
(Pet. App. 29a-40a) and the May 11, 1987, memorandum of the district
court on remand (Pet. App. 43a-53a) are unreported. The court of
appeals' order of January 28, 1988 (App., infra, 1a-2a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on March 24, 1987.
A petition for rehearing was denied on May 28, 1987 (Pet. App.
27a-28a). The petition for a writ of certiorari was filed on August
24, 1987. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether the government established that petitioner's citizenship
was illegally procurred.
2. Whether petitioner's false statements to government officials
were material.
3. Whether the court of appeals improperly engaged in de novo
factfinding by concluding that petitioner had procured his citizenship
by willfully misrepresenting material facts.
4. Whether petitioner was harmed by the district court's refusal to
compel the government to turn over certain documents in his
immigration file, where the district court and the court of appeals
examined the file in camera and determined that it contained no
exculpatory material.
STATEMENT
The government filed this action pursuant to 8 U.S.C. 1451(a) to
revoke petitioner's citizenship on the grounds that his citizenship
was illegally procured and was procured by the concealment of material
facts. After trial, the district court ruled that petitioner was
subject to denaturalization on both the illegal procurement and
material misrepresentation grounds (Pet. App. 29a-39a). The court of
appeals provisionally affirmed the order of denaturalization but
remanded the case for further proceedings in light of petitioner's
claim that he was improperly denied access to certain documents in his
immigration file or "A-file" (id. at 1a-26a). The district court
subsequently examined the A-file and determined that it contained no
exculpatory materials (id. at 44a). On January 28, 1988, the court of
appeals affirmed the latter ruling (App., infra, 1a-2a).
1. Petitioner was born in 1913 in Orel, Russia. After Nazi Germany
invaded the Soviet Union, petitioner obtained employment as a writer
for Rech, a Russian-language newspaper controlled by a propaganda
division of the German Army. The purpose of Rech was to spread Nazi
propaganda throughout the Soviet Union. Pet. App. 5a., 30a.
During his employment with Rech, petitioner wrote numerous articles
containing "vicious attacks on Jews" (Pet. App. 6a, 38a; see id. at
6a-7a (citing examples)). His work was viewed favorably by the Nazis,
and he was awarded medals for "Bravery" and "Merit" in 1943 and was
promoted to the position of deputy chief editor (id. at 5a). When the
Germans retreated from the Soviet Union, petitioner fled as well. He
accepted employment in Berlin as a writer for various
German-controlled newspapers that similarly published Nazi propaganda
and attacks on Jews (ibid.).
2. In May 1951, petitioner applied at the State Department's
consular office in Wentorf, Germany, for admission to the United
States under the Displaced Persons Act of 1948 (DPA), ch. 647, 62
Stat. 1009, as amended by the Act of June 16, 1950, ch. 262, 64 Stat.
219 (Pet. App. 10a). The DPA had been passed by Congress to permit
refugees who had been driven from their homelands during and after
World War II to emigrate to the United States without regard to
traditional immigration quotas. Under that Act, "eligible displaced
persons" were those displaced persons or refugees who were specified
in the Constitution of the International Refugee Organization (IRO),
Dec. 16, 1946, 62 Stat. 3037, T.I.A.S. No. 1846, 18 U.N.T.S. 3, as
being of "concern" to the IRO (DPA Section 2, 62 Stat. 1009). The IRO
Constitution provided that persons were not of "concern" if they had
"assisted the enemy in persecuting civil populations" or had
"voluntarily assisted the enemy forces since the outbreak of the
second world war * * *" (Annex I, Pt. II, para. 2, 62 Stat.
3051-3052). Section 10 of the DPA, 62 Stat. 1013, provided that
"(a)ny person who shall willfully make a misrepresentation for the
purpose of gaining admission into the United States as an eligible
displaced person shall thereafter not be admissible into the United
States." And Section 13 of the DPA, 62 Stat. 1014, as amended by the
Act of June 16, 1950, ch. 262, Section 11, 64 Stat. 227, barred the
issuance of a visa to any applicant who had "advocated or assisted in
the persecution of any person because of race, religion, or national
origin" or who had "participated in any movement which is or has been
hostile to the United States or the form of government of the United
States."
Petitioner's visa application was granted, and he was admitted to
the United States in June 1951, after he signed an affidavit stating
that he had "never advocated or assisted in the persecution of any
person because of race, religion or national origin" (Pet. App. 10a).
At petitioner's denaturalization trial, the government offered expert
testimony from the State Department official in charge of the consular
program at the displaced persons camp at Wentorf. That official
testified that, to ascertain an applicant's elibility under the DPA,
vice consuls routinely inquired whether the applicant had voluntarily
assisted the Nazi war effort. According to that official, anyone who
had written anti-Semitic or pro-Nazi articles for a Nazi propaganda
newspaper would have been routinely denied a visa. Id. at 10a & n.1.
In 1956, petitioner applied for naturalization. He maintained
under oath that he had not given false testimony for the purpose of
obtaining benefits under the immigration and naturalization laws (Pet.
App. 11a). During its investigation, the Immigration and
Naturalization Service (INS) learned from an FBI informant that
petitioner had worked for Rech as a Nazi collaborator. When an INS
investigator asked petitioner whether Rech had been a pro-fascist
anti-Semitic newspaper, he responded by stating (id. at 12a-13a),
"'(p)ersonally, I confined myself to anti-communist articles. I have
not written one single fascist or pro-fascist line and as to
anti-Semitic remarks, there may have been some to which I was
forced.'" The naturalization examiner, who did not have access to
copies of Rech, recommended that petitioner be granted naturalization,
and petitioner subsequently became a United States citizen (id. at
13a).
2. In January 1982, the government commenced denaturalization
proceedings. The case was tried in November 1985, and the district
court filed its findings of fact and conclusions of law on June 2,
1986 (Pet. App. 29a). The district court found that petitioner's
citizenship -- which was premised on the visa he had obtained under
the DPA -- had been illegally procured because his articles for Rech
rendered him not of "concern" to the Displaced Persons Commission and
therefore ineligible for a visa (id. at 37a). Additionally, the court
found that petitioner had willfully misrepresented and concealed his
true wartime activities from United States immigration and
naturalization officials and that his misrepresentations to those
officials were material (id. at 37a, 39a).
The court of appeals provisionally affirmed the order of
denaturalization but remanded the case for further proceedings (Pet.
App. 1a-26a). While the court held that the government had failed to
satisfy its burden of showing that material misrepresentations were
made at the visa application stage (id. at 15a-17a), it nonetheless
concluded that denaturalization was justified because petitioner,
through his employment with Rech, had assisted in and advocated the
persecution of Jews, had assisted enemy forces, and had participated
in a movement hostile to the United States. Those activities, the
court found, rendered him ineligible for a visa under the DPA and thus
established that his citizenship had been illegally procured. Id. at
21a-23a. The court also found that denaturalization was warranted
because of petitioner's misrepresentations to an INS investigator in
connection with his citizenship application. The court reasoned that,
if the INS investigator had discovered that petitioner lied in stating
that he had not written anything that was pro-fascist, petitioner
would have been ineligible for naturalization. Id. at 19a-20a.
The court of appeals, however, granted petitioner limited relief.
Petitioner had maintained that portions of his A-file had been
improperly withheld from him (see Pet. App. 23a-25a). The court of
appeals acknowledged the government's submission that only privileged
documents had been removed from the file that was given to petitioner,
but the court concluded tht it had "no way of knowing" if that was the
case "absent in camera inspection of the A-file." Accordingly, the
court of appeals remanded the matter to the district court "for such
an inspection." Id. at 24a.
The district court subsequently held an in camera inspection. It
found that the documents in the file "would (not) have been of any
value to defendant even assuming that none were privileged under
Hickman v. Taylor, 329 U.S. 495, 510-511 (1947)" (Pet. App. 44a). On
May 14, 1987, petitioner filed exceptions to the district court's
ruling. On June 18, 1987, petitioner's attorney sent a copy of those
exceptions -- which the district court had not ruled upon -- to Judge
Oakes, who had authored the court of appeals' opinion, and requested
that the panel conduct its own independent review of the A-file. On
August 21, 1987, the court of appeals ordered a further hearing on
that issue. Petitioner's attorney subsequently wrote to Judge Oakes
requesting clarification of the court's order. On October 5, 1987,
the clerk of the Second Circuit, acting on behalf of the court, asked
the parties to discuss "how the August 21, 1987 order should be
clarified." The government responded by arguing that the August 21,
1987, order was improvidently issued and should be vacated because no
further proceedings were warranted. The government noted, inter alia,
that the district court had followed the court of appeals' remand
order and that what petitioner was really complaining about was the
remand order itself. Petitioner responded to the clerk's letter by
arguing that the A-file be reviewed -- apparently by the court of
appeals itself -- in a proceeding in which his attorney could be
present and make an offer of proof as to each document.
At the time petitioner filed his petition for a writ of certiorari,
the Second Circuit had not yet issued a further ruling. On September
18, 1987, petitioner filed a motion with this Court to defer
consideration of the petition until after the Second Circuit had
completed its proceedings involving the A-file. The government
thereafter filed a memorandum with this Court expressing its agreement
that the Court should defer consideration of the petition. On
December 14, 1987, the Court granted petitioner's motion.
On January 28, 1988, the court of appeals entered an order stating
in relevant part (App., infra, 1a-2a): "We have examined a copy of
the A-file of (petitioner) * * * (and) conclude that the district
court, in ruling that none of the documents in that file had any value
to (petitioner), did not abuse its broad discretion over discovery
matters."
In light of the court of appeals' order of January 28, 1988, the
case is now in a proper posture for this Court to consider the
petition. Accordingly, we are now responding on the merits to the
various claims raised by petitioner.
ARGUMENT
1. Petitioner contends (Pet. 10) that the court of appeals erred in
concluding that he was ineligible for a visa under the DPA and that
his citizenship, which was based on that visa, was therefore illegally
procured. That argument lacks merit. The court of appeals concluded
that petitioner was ineligible for a visa under the DPA for three
separate reasons; each is independently sufficient to support the
order of denaturalization.
The court of appeals first found that petitioner, as a Nazi
propagandist for Rech, had advocated and assisted in the persecution
of Jews (Pet. App. 21a-22a). Petitioner maintains (Pet. 9) that there
was insufficient proof that he had actually persecuted anyone in the
course of his employment with Rech. That argument, however, overlooks
the explicit language of Section 13 of the DPA, upon which the court
of appeals relied, that any person who "advocated" or "assisted" in
the persecution of persons based on race, religion, or national origin
was ineligible for a visa. The evidence -- credited by the district
court -- that petitioner had authored numerous anti-Semitic articles
on behalf of the Nazi regime provided an ample basis for the court's
holding that petitioner "advocated" persecution and was therefore
ineligible for a visa. In any event, as the court of appeals noted
(Pet. App. 22a), petitioner "assisted" in persecution "by creating a
climate of opinion in which such persecution is acceptable."
The second basis for the court's affirmance on illegal procurement
grounds was that petitioner had assisted enemy forces (Pet. App.
22a-23a). Petitioner contends (Pet. 10) that the court did not find
"that (he) voluntarily assisted enemy forces, but that mere assistance
rendered him ineligible." That argument ignores critical findings
below. The district court found that petitioner had carried out all
of his assignments for Rech without any complaint or objections (Pet.
App. 35a), that he had established his commitment to Nazi ideology
prior to his employment (id. at 30a-31a), that he received various
awards and preferential benefits as an employee of Rech (id. at 31a),
and that the evidence established "beyond doubt that (petitioner's)
heart and mind were on the side of the enemy" (id. at 38a). The court
of appeals examined these findings and observed that the evidence
supported a finding that petitioner "voluntarily wrote anti-semitic
articles for Rech" (id. at 22a (emphasis added)). Thus, there is no
merit in petitioner's claim that his actions were not voluntary. /1/
The third basis for the court of appeals' illegal procurement
holding was that petitioner's employment on behalf of the Nazis placed
him in a movement hostile to the United States, thus rendering him
ineligible for a visa under Section 13 of the DPA (Pet. App. 23a).
Petitioner's argument in response to that ruling seems to be that the
court failed to find that his membership in the Nazi movement was
voluntary (Pet. 9-11). As we have noted, however, the evidence
clearly established that petitioner's affiliation with Rech was
voluntary. In any event, the portion of Section 13 relied upon by the
court of appeals contains no voluntariness requirement. Cf. Fedorenko
v. United States, 449 U.S. 490, 509-514 (1981) (holding that Annex I,
Pt. II, para. 2(a) of the IRO Constitution, which excluded from the
definition of "refugee" someone who "assisted the enemy in persecuting
civil(ians)," did not contain a voluntariness requirement).
2. Petitioner contends (Pet. 11-15) that the court of appeals erred
in concluding tht his misrepresentations at the naturalization stage
were material. He claims that the decision below conflicts with the
test for materiality adopted by this Court in Chaunt v. United States,
364 U.S. 350 (1960), /2/ and with the standard of materiality adopted
by the Tenth Circuit (Pet. 11, 13). /3/
Initially, it should be emphasized that the court of appeals'
holding that petitioner was subject to denaturalization because of his
material misstatements was entirely separate from its holding that
denaturalization was required on grounds of illegal procurement.
Accordingly, even if petitioner were correct that the court of appeals
applied the wrong materiality standard, the result would not change
because petitioner is properly subject to denaturalization for the
three additional reasons discussed above.
In any event, petitioner's statements were plainly material even
under the most restrictive interpretation of Chaunt. The court of
appeals observed that if the INS investigator had discovered
petitioner's wartime employment as a Nazi propagandist, petitioner
"would not have been eligible for naturalization" (Pet. App. 19a).
Put another way, if the true facts had been known at the time of
petitioner's naturalization petition, those facts would have resulted
in the denial of the petition. Petitioner's misstatements were
therefore material under any conceivable materiality standard. /4/
3. Petitioner asserts (Pet. 15) that the court of appeals engaged
in improper de novo factfinding by ruling that petitioner's false
statements at the naturalization stage were material. That claim does
not warrant further review. While the district court in its opinion
did not discuss petitioner's specific misstatements at the
naturalization stage, it did hold that petitioner had made a material
misrepresentation before the "District Court of the Eastern District
of New York" (Pet. App. 37a), the court which granted his
naturalization petition (id. at 29a). Since petitioner's
misstatements to the INS investigator were in the context of an
investigation incident to his application for citizenship, the
district court was presumably referring to the statements petitioner
made to the investigator. Thus, the court of appeals did not decide
the issue de novo. Rather, it simply determined, based on an
independent analysis of the record, that the district court's finding
was supported by the evidence at trial. See Fedorenko, 449 U.S. at
506 ("(I)n reviewing denaturalization cases, we have carefully
examined the record ourselves.").
4. Finally, petitioner claims that his constitutional rights were
violated because he was denied the opportunity to review certain
documents in his A-file. That claim is groundless. Both the district
court and the court of appeals reviewed petitioner's A-file, and both
courts rejected his assertion that the file contained exculpatory
documents. Petitioner asserts that the A-file might have contained
information helpful to him in several respects (see Pet. 22) bearing
on the materiality of his false statements. The district court,
however, specifically found that "not one of the withheld documents
* * * would have been of any value to (petitioner)" (Pet. App. 44a),
and the court of appeals, after its independent review of the file,
upheld that judgment (App., infra, 1a-2a). Petitioner's speculation
that the contents of the file might have been helpful to him is
therefore without merit and does not warrant further review by this
Court.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
WILLIAM F. WELD
Assistant Attorney General
BRUCE J. EINHORN
JOSEPH F. LYNCH
ARON A. GOLBERG
Attorneys
FEBRUARY 1988
/1/ Petitioner errs in relying (Pet. 10) on the Act of Mar. 28,
1951, ch. 23, 65 Stat. 28, to support his claim that his acts were not
voluntary. That provision, which was repealed a year later (see
Immigration and Nationality Act of 1952, ch. 477, Section 403(a), 66
Stat. 279-280), addressed solely the excludability of members of
anarchistic and similar groups under the Immigration Act of 1918, ch.
186, 40 Stat. 1012. Petitioner did not enter the United States under
the 1918 Immigration Act, and he was not charged with having been a
member of any anarchistic organization whose activities were
proscribed under that Act.
/2/ In Chaunt, the Court held that the statements at issue there
were not material because the government had failed to show "either
(1) that facts were suppressed which, if known, would have warranted
denial of citizenship or (2) that their disclosure might have been
useful in an investigation possibly leading to the discovery of other
facts warranting denial of citizenship" (364 U.S. at 355).
/3/ Although he does not cite a specific Tenth Circuit case,
petitioner is presumably referring to United States v. Sheshtawy, 714
F.2d 1038 (1983). Petitioner also claims, without citation, that the
decision below conflicts with the standard of materiality applied by
the Third Circuit (Pet. 11). However, in United States v. Kungys, 793
F.2d 516, 526-527 (1986), a case now pending before this Court (No.
86-228 (reargued Oct. 7, 1987)), the Third Circuit applied the
standard of materiality adopted by the Second Circuit in Maikovskis v.
INS, 773 F.2d 435, 442 (1985), cert. denied, 476 U.S. 1182 (1986),
i.e., whether the disclosure of the true facts "probably would have
led to the discovery of facts warranting the denial of a visa." The
court below similarly indicated that it was applying the standard of
materiality adopted in Maikovskis (Pet. App. 20a).
/4/ For these reasons, there is no need for the Court to hold this
case pending its decision in Kungys v. United States, No. 86-228.
Even under the standard of materiality proposed by the petitioner
there -- whereby the government must prove that a visa or
naturalization petition would not have been granted had the government
officials know the true facts -- the misstatements here were material.
Moreover, because the material misrepresentation ground was only one
of several independent bases for denaturalization, the result in this
case would not change even if petitioner were to prevail on that
issue.
Appendix